Survival Actions vs. Wrongful Death Claims

When an accident results in someone’s wrongful death, two types of claims can be made by the deceased person’s family. Both are discussed here.

You may be familiar with the idea that, if a person dies as the
result of a personal injury, his or her estate can bring what is called a
wrongful death lawsuit. You may also have heard of the legal case
called a survival action. But what really is the difference between the
wrongful death action and the survival action?

Both wrongful death and survival actions are statutory and strictly
governed by state law. This means that they exist because the states
passed laws (statutes) that allowed these types of claims. Before those
state laws existed, a deceased’s personal injury claim died with the
deceased; a deceased’s estate had little or no right to pursue a
personal injury claim after the death of the deceased.

There are two major differences between the wrongful death laws and
the survival laws. First, the wrongful death laws allow the estate to
bring the lawsuit in the first place and set forth the legal procedure
for bringing a wrongful death lawsuit. Without the wrongful death laws,
an estate could not file a wrongful death lawsuit. Second, the wrongful
death laws and the survival laws authorize separate types of damages to
be awarded to the estate for the death of the decedent.

In a nutshell, the wrongful death laws allow the estate to be awarded damages for
the beneficiaries of the deceased (i.e., those who suffered, mostly
financially, due to the deceased’s death). The survival laws allow the
estate to be awarded damages that the decedent could have recovered if
he/she had not died (i.e., pain and suffering and lost earnings).

Wrongful Death Actions

Because wrongful death lawsuits are
strictly governed by state law, each state has its own specific state
laws and procedures. However, several issues are common to all states’
wrongful death laws, such as:

who can file a wrongful death lawsuit on behalf of the deceased’s estate

how a person gets appointed to represent the estate

what types of damages are allowed in a wrongful death case

Who Can File a Wrongful Death Lawsuit on Behalf of the Deceased?

The personal representative of the estate will file the lawsuit. The
personal representative is usually the deceased’s closest surviving
relative such as a spouse, child, or parent. Generally, the deceased’s
family will agree on who should be the personal representative, but, if
the deceased left no will or if the family members do not get along, the
surviving family members may not agree over who will be the personal
representative. In such a case, the dispute can only resolved by the
courts.

How Does the Personal Representative Get Appointed?

The representative must be appointed by the state court that handles
wills and estates, often called the probate court. If anyone objects to
the person who seeks to become the personal representative, the court
will have a hearing and then will decide who would best represent the
interests of the deceased’s estate.

What Types Of Damages are Allowed in a Wrongful Death Case?

Wrongful death damages differ from state to state, but are generally
financial (the legal word is pecuniary) damages awarded to the
deceased’s beneficiaries.

The deceased’s beneficiaries are generally the person’s spouse,
children, and any other relatives for whom the deceased provided
financial support. The main type of wrongful death damages is loss of
support for all family members whom the deceased supported financially
for the period of time into the future that the deceased would have
supported them.

In order to be awarded damages for loss of support, the family member
must prove that the deceased supported him/her financially, and must
prove the amount of the support. Minor children will receive loss of
support through age 18 and generally for college if the child can prove
that the deceased would have contributed to the child’s college
education. A widow will receive loss of support until the deceased’s
presumed retirement age (usually 65). A widower can receive loss of
support if he can show that his deceased wife supported him. Parents or
other relatives can also receive damages for loss of support if they can
prove that the deceased supported them.

Depending on the state, the deceased’s spouse may be entitled to
receive damages for loss of consortium and a separate award of damages
for loss of the deceased’s services around the house. The deceased’s
children might be entitled to damages for what is called loss of
guidance and nurture (this is exactly what it sounds like). The estate
may also be entitled to receive punitive damages if the defendant acted
recklessly or wantonly. The estate will also receive damages for the
deceased’s funeral and burial expenses (although sometimes funeral
expenses are considered survival damages). You should be aware that some
states have caps (limitations) on wrongful death damages.

Damages Allowed Under the Survival Laws

The survival laws allow the estate to be awarded damages that the
deceased incurred from the moment of the injury until the time of death.
So, survival damages can include not only the deceased’s pain and suffering,
but also lost earnings until his/her death. If, however, the deceased
died immediately as a result of the accident, then the estate would be
entitled to pain and suffering, if pain and suffering can be proved, but
would not be entitled to damages for the deceased’s lost earnings.